Citation NR: 9630589
Decision Date: 10/29/96 Archive Date: 11/08/96
DOCKET NO. 93-16 982 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, Philippines
THE ISSUE
Whether the basic eligibility requirement for VA death
benefits are met.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. A. Caffery, Counsel
INTRODUCTION
Active military service for the deceased husband of the
appellant during World War II is claimed. He is presumed to
have died in October 1944. Entitlement to the benefit sought
was denied by the regional office in December 1950, August
1955, May 1969, November 1977, and April 1991. An appeal has
been taken from a March 1993 decision by the VA Regional
Office, Manila, denying entitlement to VA death compensation
benefits because the requirement of qualifying military
service had not been met. The case was initially before the
Board of Veterans' Appeals (Board) in June 1995 when it was
remanded for further action. The case is again before the
Board for further appellate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in substance, that she meets the
basic eligibility requirements for VA death benefits since
her late husband had active military service during World War
II. In support of her claim she has submitted a 1955 letter
from the Philippine Veterans Board as well as a certification
of service of her husband from the Philippine Veterans
Affairs Office and she has also submitted a May 1993
certification of her husband's military service issued by the
General Headquarters, Armed Forces of the Philippines, Camp
Aguinaldo, Philippines. It is maintained that in obtaining a
redetermination of her husband's military service from the
Army Department, the regional office furnished only the prior
negative certification issued by the Army Department in
September 1950 and failed to also furnish the April 1949
positive certification issued by the service department.
Thus, it is maintained that the VA cannot rely only on
evidence it considers to be favorable to its position. It
must base its decision on all of the evidence of record.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the claims file of the
appellant's deceased husband. Based on its review of the
relevant evidence in this matter and for the following
reasons and bases, it is the decision of the Board that the
appellant does not have basic eligibility for VA death
benefits as surviving spouse of a deceased serviceman since
her husband did not have the requisite qualifying military
service.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appellant's appeal has been obtained by
the regional office.
2. The appellant's husband is presumed to have died in
October 1944.
3. In January 1993 a reopened claim for VA death benefits
was submitted by the appellant.
4. In February 1996 the service department affirmed a prior
September 1950 certification that the appellant's deceased
husband had no recognized guerrilla service nor was he a
member of the Philippine Commonwealth Army in the service of
the Armed Forces of the United States.
CONCLUSION OF LAW
Since the appellant's deceased husband did not have
qualifying service he may not be considered a veteran for
purposes of establishing her basic eligibility for VA death
benefits. 38 U.S.C.A. §§ 101(2), 5107 (West 1991); 38 C.F.R.
§§ 3.8, 3.9, 3.203 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In an April 1949 certification, the Army Department indicated
that the appellant's husband was presumed to have died in
October 1944. The appellant's claims for VA death benefits
as surviving spouse of the veteran were denied by the
regional office on several occasions from December 1950 to
April 1991. In January 1993 she submitted additional
information for the purpose of reopening her claim and in
March 1993 the regional office confirmed and continued the
prior denials of entitlement to VA death benefits on the
basis that the requirement of qualifying military service had
not been met. The appellant appealed from that decision.
VA death benefits may be paid, under certain circumstances,
to a surviving spouse of a veteran. 38 U.S.C.A. Chapters 13,
15. The term "veteran" means a person who served in the
active military, naval or air service and who was discharged
or released therefrom under conditions other than
dishonorable. 38 U.S.C.A. § 101(2). Service in the
Commonwealth Army of the Philippines, including guerrilla
service, is included for purposes of dependency and indemnity
compensation. 38 C.F.R. §§ 3.8(c), 3.8(d).
For a member of one of the regular components of the
Philippine Commonwealth Army while serving with the Armed
Forces of the United States, the period of active service
will be from the date certified by the Armed Forces as the
date of enlistment or date of report for active duty,
whichever is later, to the date of release from active duty.
38 C.F.R. § 3.9(a). The active service of members of the
irregular forces "guerrillas" will be the period certified by
the service department. 38 C.F.R. § 3.9(d).
In this particular case, the April 1949 report from the Army
Department disclosed that the appellant's husband began
service in the Armed Forces of the United States on December
8, 1941, as a member of the Philippine Commonwealth Army,
1st Regiment Division, 1st Infantry, Company "G." His status
was reported as beleaguered from December 8, 1941, to January
29, 1942, and missing from January 30, 1942, to October [redacted]
1944. As noted previously, he was presumed to have died on
October [redacted] 1944.
An Army Department redetermination report, dated in September
1950, indicated that the appellant's husband had no
recognized guerrilla service or service as a member of the
Philippine Commonwealth Army in the service of the Armed
Forces of the United States.
A VA memorandum, dated in October 1950, requested that a
redetermination of service be made in the case of the
appellant's husband.
A December 1954 statement from the office of the Judge
Advocate General of the Armed Forces of the Philippines
reflected that the appellant, as widow, had received certain
funds for the arrears of pay and allowances for her husband's
service from January 1, 1942, to October [redacted] 1944, as a
member of the 1st Regiment Division, 1st Infantry, Company G,
of the Philippine Commonwealth Army.
In a December 1990 letter to the VA, the appellant provided a
copy of a February 1955 letter from the Philippine Veterans
Board reflecting that in recognition of services rendered by
her husband, she had been awarded a pension for herself and
two minor children. She also provided a copy of a May 1980
statement by the Philippine Veterans Affairs Office
certifying that according to the records available in the
office her deceased husband was a veteran of the World War
II/Philippine Revolution who served with the Philippine Army
in the U.S. Armed Forces of the Far East.
In connection with her substantive appeal, the appellant
provided a copy of a May 1993 certification by the General
Headquarters, Armed Forces of the Philippines, Camp Aguinaldo
reflecting that her husband had served as a member of the
1st Regiment Division, 1st Infantry, Company G of the
Philippine Commonwealth Army and had been in a beleaguered
status from December 8, 1941, to January 29, 1942, and a
missing status from January 30, 1942, until October [redacted] 1944,
the date of his presumed death.
Pursuant to the remand by the Board, the regional office
later asked the service department for a redetermination
concerning any active service of the appellant's deceased
husband. In the request for information, the regional office
provided copies of the prior determination of the Army
Department in September 1950 and the May 1993 statement from
the General Headquarters, Armed Forces of the Philippines,
Camp Aguinaldo, provided by the appellant.
In February 1996 the service department provided a
certification that the evidence submitted was insufficient to
warrant a change in the prior negative certification dated in
September 1950.
As indicated previously, VA benefits may be paid, under
certain circumstances, upon the death of a veteran. The
appellant has maintained that her deceased husband had active
military service during World War II. However, although the
Army Department initially indicated in April 1949 that the
appellant's husband had served with the Armed Forces of the
United States beginning in December 1941 as a member of the
Philippine Commonwealth Army, a redetermination report by the
service department dated in September 1950 reflected that her
husband had no recognizes guerrilla service or service as a
member of the Philippine Commonwealth Army in the service of
the Armed Forces of the United States. A recent
certification by the Army Department, dated in February 1996,
affirmed the September 1950 negative certification. The
official certification by the service department is binding
on the VA. 38 C.F.R. § 3.203; Duro v. Derwinski,
2 Vet.App. 530 (1992), Cahall v. Brown, 7 Vet.App. 232
(1994).
In view of the above discussion, the Board concludes that the
appellant's deceased husband did not have active military
service as a member of the United States Armed Forces. Thus,
under the circumstances, it is apparent that a basis for
favorable action in connection with her appeal has not been
presented. The Board recognized that the appellant has
submitted a February 1955 statement from the Philippine
Veterans Board indicating that based on the services rendered
by her husband an award of pension had been made to her and
two minor children and also a May 1980 statement from the
Philippine Veterans Affairs Office indicating that according
to the records in that office her deceased husband was a
veteran of World War II who served with the Philippine Army
in the U.S. Armed Forces of the Far East. However, those
statements would not be determinative of the matter under
consideration. As discussed previously, the official
certification of the service department that her deceased
husband had no recognized guerrilla service and was not a
member of the Philippine Commonwealth in the service of the
Armed Forces of the United States is binding on the VA. It
should also be commented that in the recent request for
recertification of any active service on the part of the
appellant's deceased husband, the regional office provided a
copy of the May 1993 report by the General Headquarters of
the Armed Forces of the Philippines indicating that the
appellant's deceased husband had served with the Philippine
Commonwealth Army during World War II as well as a copy of
the September 1950 determination by the Army Department that
he had no active military service. Thus, both favorable as
well as unfavorable information was submitted in connection
with the request for a redetermination of any military
service on the part of the appellant's deceased husband.
Consequently, the Board finds that the basic eligibility
requirements for VA death benefits have not been met.
38 U.S.C.A. §§ 101(2), 5107; 38 C.F.R. §§ 3.8, 3.9, 3.203.
ORDER
The basic eligibility requirements for VA compensation
benefits have not been met. The appeal is denied.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -